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Service of Court Documents by Social Media

Service of Court Documents by Social Media

Court documents are often required by the court rules to be personally served on a party to the proceedings.  For example, an originating process such as a Statement of Claim or Summons filed in the District Court or Supreme Court of NSW must be personally served.  In order to affect personal service on a person, a copy of the document must be left with the person or if the person does not accept the copy, it can be put down in the person’s presence and by telling the person the nature of the document.

In some circumstances a person cannot practically be personally served.  In those circumstances the court rules provide that they may make an order in lieu of personal service for other specific steps to be taken to ensure that the document is brought to the notice of the person.  This is known as substituted service.  In an application for substituted service, an applicant must satisfy the Court that the proposed method of service would bring the document to the notice of the party.

There have been a number of Court decisions where the court has been asked to make an order for substituted service by social media.

In the NSW Supreme Court decision of Wacim v Criniti [2016] NSWSC 1723 the plaintiff brought proceedings for defamation arising from publications on social media.  The defendant was unable to be located in person to be served. The plaintiff brought an application to the Court for substituted service, adducing evidence that the defendant was active on Facebook and Instagram.  The Court was satisfied that those proposed methods of service were likely to bring the Statement of Claim to the notice of the defendant and made an order for substituted service.

The evidence to the Court in support of the application needs to be sufficient for the Court to make a finding that service by social media will bring the document to the notice of the person concerned. 

In Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268, the defendant resided overseas but was temporarily in Australia.  Flo Rida, a rap music artist, was contracted to perform as the headline act at the “Fat as Butter Festival” held in Newcastle on 22 October 2011.  He did not appear and the organiser of the festival, Mothership Music Pty Ltd, sued him in the District Court for damages for breach of contract.

In the District Court the Judge made an order for substituted service of the District Court Statement of Claim, permitting service of it by email and posting a message regarding it on Facebook.  It led to a default judgment being entered against Flo Rida.  Flo Rida appealed this decision to the NSW Court of Appeal.  A ground of the appeal was that the decision made by the District Court ordering service of the Statement of Claim via the Facebook page was misguided, as the evidence did not establish that the Facebook page was operated or owned by Flo Rida.

The NSW Court of Appeal agreed with that argument.  It held that it was not proven that posting on Flo Rida’s Facebook page would likely bring the Statement of Claim to his attention in a timely fashion.  Accordingly, the order for substituted service granted by the District Court was set aside.

The lessons from these NSW Court decisions are that a document can be served by social media however there must evidence before the Court that the substituted service will bring the document to the notice of the person concerned.  This includes evidence that a social media account actually belongs to the person to be served, the person uses the social media account and that the person is likely to continue using the social media account at the time the substituted service order is made.

All individuals or organisations using social media must also be alert and carefully consider all documents received on any platform, as there may be significant legal consequences if documents are ignored.

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